Section 34 of the new Land Bill is a repeat of the old Section 24 (C). This is the provision requiring any sale to a non-citizen to be advertised for 21 days to allow any citizen to buy it instead, provided he matches the price. This is so badly written that it is astonishing that it works as well as it does.
First of all what does “price” mean? If a property is to be sold to a non-citizen for K20 million (about $50 000) and a Malawian offers the same K20 million but paid in instalments over 10 years, is that the same “price”? In real terms it certainly is not.
Secondly there is no requirement for the Malawian who makes an offer to prove that he has the means to proceed, or even to sign an agreement and pay a deposit.
Thirdly the section offers no means whereby the vendor can prove that he has received no offers after the required advertising. Perhaps any Malawian making an offer should be obliged to copy it to the minister.
Fourthly there is no guarantee that the sale can go ahead even after the right procedures have been followed.
One surprising alteration to the previous law is in Section 6, which largely repeats Section 5 of the existing Land Act, which says the minister may grant leases and so on. The old Act restricted new leases to 99 years, (on customary land at least), whereas now there is no restriction. So the minister can even grant freeholds, can he?
The new bill also misses out on the opportunity to set out what principles should govern the terms of any new lease, for example, relating to user covenants and renewals. A major anomaly at present is that when a lease comes to an end, a lessee can usually get a new lease and he is deemed to own all improvements on the land, but there is no legal basis for this. In law, everything reverts to government. Surely, the law or lease terms should be altered so that practice is in accordance with the law?
Is this important? Yes. Suppose I do a valuation for a company whose major asset is a leasehold property with only a few years to run. I am obliged to explain the above and say that the valuation is based on the assumption that the company owns all the buildings and other improvements but the law says otherwise. Frankly, that sort of statement read in a foreign boardroom makes Malawi sound pretty silly. Likewise, if a bank wants to take such a property as security for a loan, they have no assurance regarding what is owned.
I believe there is also need to consider and provide special rules for ground rent revisions where a lessee pays a substantial premium or development charge at the commencement of the lease, (balanced by a low ground rent). It is surely unfair that on review he should have to pay the same ground rent as someone who made no such payment. However, this is very complicated territory.
Like Mr Wawanya, I am a land economy surveyor, (or chartered valuation surveyor), not a lawyer so I may have got a few things slightly wrong, but in our business we need to know quite a lot about the laws relating to land.
Attached to the Land Bill are bills covering Land Acquisition, Physical Planning, Registered Land, Land Survey, Customary Land, Forestry, Malawi Housing Corporation, Mines & Minerals and Local Government. All are, no doubt, very important and some of them are quite large. I have not had time to scrutinise them all and hopefully all are perfect, but I would not bank on it! Mr Wawanya also refers to a Valuers Bill and a Landlord and Tenant Bill, but I have not seen these.
In conclusion, I would say that, in my opinion, although all these new Acts are long overdue, it would be folly to pass this Land Bill, (and possibly the others), without subjecting it to a major overhaul.
I would welcome comments on the above, and on any other issues I have not addressed.
—The author is a chartered valuation surveyor who has been working in Malawi for over 30 years in both the public and private sectors.